Protesters gather outside the state Capitol building on Friday, April 14, 2017, in Little Rock, Ark., to voice their opposition to Arkansas' seven upcoming executions. (AP Photo/Kelly P. Kissel)

Arkansas still faces legal hurdles in execution plan

April 17, 2017 - 7:22 pm

The Associated Press

VARNER, Ark. (AP) — A federal appeals court on Monday cleared one of several legal obstacles Arkansas faced in its already undermined plan to execute eight inmates before the end of April, but the effort remained in limbo as state officials fought other rulings halting the executions.

The decision from the 8th U.S. Circuit Court of Appeals was the latest in a flurry of legal actions threatening to stop a series of lethal injections that, if carried out, would mark the most inmates put to death by a state in such a short period since the U.S. Supreme Court reinstated the death penalty in 1976.

Two hours before the appeals court ruling, the Arkansas Supreme Court halted the executions of two men originally scheduled to be put to death Monday night. The federal court overturned U.S. District Judge Kristine Baker's decision to halt the executions over the use of a controversial lethal injection drug, but the state Supreme Court's rulings remain in place.

"Under our view of the correct legal standard, we cannot agree with the district court that the prisoners have demonstrated a significant possibility of establishing a known and available alternative that would significantly reduce a substantial risk of severe pain," the court said.

Earlier Monday afternoon, the state Supreme Court issued a 4-3 decision granting stays for Don Davis and Bruce Ward. The inmates wanted stays of execution while the U.S. Supreme Court takes up a separate case concerning access to independent mental health experts by defendants. The U.S. high court is set to hold oral arguments on April 24.

Three Arkansas justices dissented, with Associate Justice Shawn Womack writing that Ward and Davis "had their day in court, the jury spoke, and decades of appeals have occurred. The families are entitled to closure and finality of the law."

The inmates' attorneys argued that their clients were denied access to independent mental health experts, saying Ward has a lifelong history of severe mental illness and that Davis has an IQ in the range of intellectual disability.

Attorney General Leslie Rutledge's office said she would appeal the state ruling to the U.S. Supreme Court. Rutledge said in a status update with the 8th U.S. Circuit Court of Appeals that she believes the state court's ruling was based on a misinterpretation of federal law.

"This decision was not unanimous and the dissenting opinions reflect the harm the delays cause the families of the victims and it also expresses my frustration in the continued delayed justice," Gov. Asa Hutchinson, who set the execution dates, said in a statement.

The death warrants for Davis and Ward expire at midnight, and it was not clear whether Hutchinson would immediately set new dates for the men.

The Arkansas high court already had issued one stay for Ward after a Jefferson County judge said she didn't have the authority to halt Ward's execution. Ward's attorneys have argued he is a diagnosed schizophrenic with no rational understanding of his impending execution.

The back-and-forth with the courts came as the state seeks to execute eight prisoners before its supply of the sedative midazolam expires at the end of the month. If court proceedings are pushed into May, Arkansas won't be able to carry out the executions with the drugs it has on hand.

The state was still moving forward with plans to conduct the Monday night executions in the event that all stays were lifted. A spokesman for Arkansas Attorney General Leslie Rutledge had no immediate comment on the latest stays, saying the office was still reviewing the court's order.

Meanwhile, the Arkansas Supreme Court also barred a state judge who blocked the multiple execution plan from taking up any death penalty related cases after he participated in a protest where he appeared to mimic a death row inmate about to receive a lethal injection. Justices reassigned any death penalty cases from Pulaski County Circuit Court Judge Wendell Griffen, who banned the state from using a lethal injection drug a supplier said was misleadingly obtained. After issuing the order, Griffen participated in an anti-death penalty demonstration where he was strapped to a cot. The high court asked a disciplinary panel to consider whether Griffen violated the code of conduct for judges.